Citation Nr: 0323321
Decision Date: 09/10/03 Archive Date: 09/23/03
DOCKET NO. 00-24 797 ) DATE
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an increased disability evaluation for
postoperative residuals of prostate cancer, currently
assigned a 60 percent evaluation.
REPRESENTATION
Appellant represented by: Disabled American Veterans
INTRODUCTION
The veteran served on active duty from April 1968 to April
1971.
This case comes before the Board of Veterans' Appeals (Board)
by means of a February 1999 rating decision rendered by the
New Orleans, Louisiana, Regional Office (RO) of the
Department of Veterans Affairs (VA).
FINDINGS OF FACT
1. The veteran perfected a timely appeal of an October 2000
rating action that decreased the evaluation of postoperative
prostate cancer from 100 percent to 40 percent disabling,
effective January 1, 2001.
2. An evaluation of 60 percent for postoperative residuals of
prostate cancer was established by a rating decision of May
2002 and is effective from January 1, 2001.
3. On August 13, 2003, prior to the promulgation of a
decision in the appeal, the Board received notification from
the appellant, through his authorized representative, that a
withdrawal of this appeal is requested.
CONCLUSION OF LAW
As the veteran has withdrawn his appeal, there remains no
allegation of error of fact or law for appellate
consideration. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002);
38 C.F.R. § 20.204 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2002).
Withdrawal may be made by the appellant or by his or her
authorized representative, except that a representative may
not withdraw a Substantive Appeal filed by the appellant
personally without the express written consent of the
appellant. 38 C.F.R. § 20.204(c) (2002). The appellant by a
statement received at the Board on August 13, 2003, withdrew
his appeal and there remain no allegations of factual or
legal error for appellate consideration. Accordingly, the
Board does not have jurisdiction to review the appeal and it
is dismissed without prejudice.
ORDER
The appeal is dismissed.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.